The Sentencing Council recently published definitive guidelines on health and safety and food safety hygiene offences which will see a significant increase in the level of fines which can be imposed by the courts. The guidelines, which come into force on 1 February 2016, are particularly relevant to the hospitality industry and emphasise the need for compliance across the sector.
The offences range from multiple fatalities at one end of the scale to the risk of minor injury at the other. Food safety offences could put restaurant customers at risk of illness or lead to a fatal outbreak of food poisoning. An offence may be committed where no actual harm occurred but a risk was posed to the health and safety of others. Consequently a number of scenarios are covered by the legislation.
Learn from the mistakes of others…
Over recent years there have been a number of high profile cases involving the prosecution of hoteliers for breach of health and safety legislation. Earlier this month the owners of Down Hall Country House Hotel were fined £200,000 for systematic health and safety breaches which resulted in the death of two guests when using the hotel’s swimming pool. In this case it was found that the gradient of the swimming pool vastly exceeded the recommended incline resulting in the swimmers being unable to grip the slope.
When passing sentence at Chelmsford Crown Court, Judge Anthony Goldstaub QC said: “The defendants [the company] didn’t lay down, monitor and enforce a clear and practical structure for the management of health and safety at their hotel, particularly with regard to the safety of their guests for the use of the swimming pool. Indeed, it seems to me the management of health and safety matters was imprecise and diffuse, and the roles and responsibilities of the various managers and organisations involved were not clearly defined, clearly understood and forcefully pursued. There was a culture of complication and confusion, and it was systemic. It was structural to the direction and management of the defendants from boardroom level down”.
In 2012, The Chumleigh Lodge Hotel in Finchley, London was ordered to pay over £260,000 in fines and costs for fire safety failures including defective fire doors, blocked escape routes and lack of smoke alarms. These failures were discovered on investigation following a fire which saw one guest escape through a second floor window.
A further example of the risks posed by swimming pools can be seen in the case of The Adelphi Hotel in Liverpool which was fined £65,000 plus costs of £70,000 after a guest drowned. The court found that there had been at least fourteen health and safety breaches in the months running up to the incident.
The financial implications for breaching health and safety legislation in the form of fines and legal fees coupled with negative press can have disastrous consequence for the business and its goodwill.
The Sentencing Guidelines
To ensure that the sanction is proportionate to the offence, the new guidelines have a broad scope to reflect the level of culpability and risk of harm. This ranges from an isolated failure to follow procedure to a deliberate disregard to follow the law or take action in relation to concerns raised by guests and employees.
The courts will have the power to impose large fines of up to £10 million for breach of health and safety legislation and up to £20 million in the case of convictions for corporate manslaughter. The level of fine will however be proportionate to the turnover of the business.
Duty of Care
Hotels have a duty to take all reasonably practicable steps to ensure the safety of their guests and employees. However, it is not always clear who owes the duty of care as management structures vary with a combination of ownership, management and franchise structures often operating simultaneously. Consequently, if a hotel does receive a complaint which may result in legal action, careful consideration should be given to who owes the duty of care.
Company directors must ensure that they follow the Health and Safety Executive and Institute of Director’s guidance ‘Leading Health and Safety at Work’. This includes engaging the workforce in the promotion and achievement of safe conditions and providing ongoing training. Directors can be held personally liable when these duties are breached as members of the board have both collective and individual responsibility.
Proactive health and safety management is paramount and a robust policy which is properly implemented, monitored and followed will reduce the risk of liability in the event that an incident does occur. It is important to identify the potential threats, evaluate the risk and set precautions accordingly. It may be appropriate to have a risk assessment prepared by an external Health and Safety Consultant and a policy devised accordingly.
The impact of an incident can be disastrous not only due to the potential financial costs but also the negative press and associated damage to the hotel’s reputation. Whilst incidents cannot always be avoided, by taking proactive steps hoteliers can reduce the risk of being held liable in the event that an incident does occur.
For more information please contact Edward Barnes on 01244 354829 or edward.barnes@dtmlegal.com
